War crime charges to haunt incessantly until Sri Lanka clears the doubts

(December 12, Colombo - Lanka Polity) The incident of alleged shooting at a group of cadres of the Liberation Tigers of Tamil Ealam (LTTE) political wing cadres is repeatedly haunting in political circles and on December 09 Sri Lankan ambassador to UN Paitha Kohona was queried about it by Australia Broadcasting Corporation (ABC) Presenter Sarah Dingle. Kohona was the Secretary of the Ministry of Foreign Affairs of Sri Lanka by the time and  he is also a citizen of Australia.

DINGLE: In the last days of the civil war, two political leaders of the rebel Tamil Tiger fighters tried to lay down their arms and surrender. The incident is mentioned in a 2009 US State Department report to Congress, on possible violations of international humanitarian law in Sri Lanka, from January until the end of May this year.

The report says the leaders, Nadesan and Puleedevan spoke to international and domestic figures, who acted as intermediaries with the then Foreign Secretary Dr Palitha Kohona to negotiate a surrender. Nadesan requested a UN witness, but was told he had the Sri Lankan President's guarantee of safety.

On May the 18th, Nadesan and Puleedevan led about a dozen men and women under a white flag to waiting Sri Lankan army troops. A Tamil eyewitness said the soldiers fired on them with machine guns. Everyone in the group was killed.

Dr Palitha Kohona is now Sri Lanka's ambassador to the United Nations. He is also an Australian citizen, and according to Hansard, a former senior official with the Department of Foreign Affairs and Trade. The ABC asked him what his role was in arranging the surrender.

KOHONA: Absolutely none, because I was in foreign ministry I had nothing to do with the defence ministry or the defence forces, I had no role in arranging anything, and I don't think anything was arranged anyway.

DINGLE: So there was no surrender agreed to?

KOHONA: Actually not as far as I am concerned, I don't think anybody else was involved in such a surrender either.

DINGLE: So did anyone contact you regarding the surrender of those two figures?

KOHONA: Anybody from the defence establishment, no.

DINGLE: Did anyone at all contact you about the surrender of those two figures?

KOHONA: There was an attempt to wake me up in the middle of the night, and I told them that I was not the person to contact about those demands.
There was a general query about surrendering, and I told them that there I was the wrong person, that I had nothing to do with surrendering and asked them to go and deal with the matter in the way it ought to be dealt with.

DINGLE: And what was that way?

KOHONA: I'm sorry, I can't answer stupid questions of this nature.

DINGLE: Three weeks after the shooting, Sri Lanka's army chief General Sarath Fonseka was reported as saying that the military had to overlook traditional rules of war and kill LTTE rebels who had come under white flags to surrender.

Don Rothwell is a professor of international law at the Australian National University. He says as a diplomat Dr Kohona has immunity from prosecution, but recently international law courts have begun to question this principle in the case of possible war crimes.

ROTHWELL: There's nothing to suggest Dr Kohona was directly responsible for committing these alleged war crimes, though international law does recognise principles of what's called command responsibility, where if someone had direct command whether it's legal or political with respect to the commission of these types of offences.

DINGLE: Professor Rothwell says in this case, there is enough material to launch a preliminary investigation.

ROTHWELL: Dr Kohona is a dual Australian Sri Lankan citizen, the fact that he is an Australian citizen automatically activates obligations for Australia to investigate this matter at the legal level, but the fact that he was a former high profile official for the Australian Government representing Australia in international negotiations, I think perhaps places an even stronger responsibility on Australia to at least conduct the initial investigations into this matter.

DINGLE: Dr Palitha Kohona.

First and foremost, the allegations need to be substantiated, no country goes around investigating silly accusations based on innuendo and unsubstantiated facts.
DINGLE: It was reported that you once said only loser countries, countries that lose the war, get tried for war crimes. Is that true?

KOHONA: Historically that is a fact.

DINGLE: Both the federal government and the Australian Federal Police say they are aware of the US State Department's report. The AFP says it hasn't received any referral to investigate Dr Kohona for alleged war crimes. A spokesman for the Attorney General's Department says investigation and prosecution by the country in which criminal conduct occurred, is the most appropriate way to bring an alleged war criminal to justice.

London datelined PTI news report dated 23 May, under the title "Britain and Norway tried to save two top LTTE leaders: report" said, Britain and Norway made a last minute bid to save the lives of two Tamil Tiger leaders, but in vain, as Sri Lankan troops closed in, the media reported today.

It was further reported that the LTTE's political chief, B Nadesan, and 'peace secretariat' head, S Pulidevan, had attempted to surrender, The Daily Telegraph said, in a report quoting Vijay Nambiar.

According to a London datelined PTI news report David Miliband British foreign Minister and Norwegian Minister Erik Solheim and UN officials were all involved in trying to save the two proclaimed LTTE terrorists - B.Nadesan and Pulidevan.

The men were later found dead amid claims that they were shot while waving a white flag, and Western diplomats warned that the Sri Lankan government could face a war crimes investigation.

The World Socialist Website ran a detailed story about the incident and it is as follows:

British newspapers expose cold-blooded killing of LTTE leaders in Sri Lanka

By Robert Stevens
3 June 2009

The British press last week revealed that senior leaders of the Liberation Tigers of Tamil Eelam (LTTE) were in negotiations with British and American diplomats to surrender, immediately prior to their killing by the Sri Lankan army on May 18. Also involved in the talks was the United Nations secretary general’s chief of staff, Vijay Nambiar.
The Guardian and the Sunday Times both published reports stating that Balasingham Nadesan, the leader of the LTTE’s political wing, and Seevaratnam Puleedevan, the head of its peace secretariat, held talks with Nambiar through a series of intermediaries, including a journalist and a delegation of British diplomats.

The Guardian states that the LTTE leaders also made further contact with Norwegian Environment and Development Cooperation Minister Erik Solheim prior to their deaths. Solheim had been involved as a special envoy in attempts to broker a peace agreement following the 2002 ceasefire in Sri Lanka’s protracted civil war.

The Sunday Times article by journalist Marie Colvin was headlined, “Tigers begged me to broker surrender.” She explained how the initial contact between the LTTE, British and United States officials, and the United Nations had been facilitated through her.

Colvin has covered the civil war in Sri Lanka since being “smuggled into territory eight years ago” in order “to investigate reports that the government was blocking food and medical supplies to half a million Tamils.” She had met and came to know Nadesan and Puleedevan since that time.

The Guardian details how the two leaders of the LTTE attempted to agree to a last minute deal with the Sri Lankan government just hours before they were killed by the army in the early hours of May 18—while in the process of surrendering.

A British official states that UK involvement was “at most indirect”, but the article includes a quote from Nambiar saying that he had had “direct contact” with British diplomats in New York and also with an unnamed British minister. Nambiar added, “There was a ministerial demarche [a formal diplomatic representation] to the secretary general from the UK office in New York.”

Nambiar passed on the information obtained by the Times journalist regarding the proposal of Nadesan and Puleedevan to surrender to the Sri Lankan government. He says that he also spoke to Sri Lankan Foreign Secretary Palitha Kohona about the proposal.

The government had no intention of brokering a ceasefire or allowing any surrender by the LTTE leadership. Nambiar told the Guardian, “The Sri Lankan government did not say that they would accept the surrender. They said it may be too late.”

After being contacted by the LTTE regarding the surrender, Solheim “then contacted the International Committee of the Red Cross and the Sri Lankan government”.

A text message was then sent from Kohona to the Red Cross, which read, “Just walk across to the troops, slowly! With a white flag and comply with instructions carefully. The soldiers are nervous about suicide bombers.”

In Colvin’s Times article she described the harrowing conditions facing the LTTE fighters as they were cornered into a tiny strip of jungle and a beach area during the final army offensive: “Tens of thousands of Tamil civilians were trapped with them, hiding in hand-dug trenches, enduring near constant bombardment.”

“For several days I had been the intermediary between the Tiger leadership and the United Nations as the army pressed in on the last enclave at the end of a successful military campaign to defeat the rebellion,” she writes. “Nadesan had asked me to relay three points to the UN: they would lay down their arms, they wanted a guarantee of safety from the Americans or British, and they wanted an assurance that the Sri Lankan government would agree to a political process that would guarantee the rights of the Tamil minority.

“Through highly placed British and American officials I had established contact with the UN special envoy in Colombo, Vijay Nambiar, chief of staff to Ban Ki-Moon, the secretary-general. I had passed on the Tigers’ conditions for surrender, which he had said he would relay to the Sri Lankan government.”

Colvin corroborates the Guardian’s report. She states that in conversation with Nambiar during the morning of May 18, he told her that he had been told by Sri Lankan President Mahinda Rajapakse that the two leaders would be able to surrender by hoisting “a white flag high”.
Colvin stated, “Once more, the UN 24-hour control centre in New York patched me through to Nambiar in Colombo, where it was 5.30 a.m. on Monday. I woke him up.

“I told him the Tigers had laid down their arms. He said he had been assured by Mahinda Rajapakse, the Sri Lankan president, that Nadesan and Puleedevan would be safe in surrendering. All they had to do was ‘hoist a white flag high,’ he said.”

Shortly after this Colvin lost contact with Nadesan’s satellite phone and spoke to an LTTE contact in South Africa, to whom she relayed the instructions to hoist the white flag.

Colvin reports, “A Tamil who was in a group that managed to escape the killing zone described what happened. This source, who later spoke to an aid worker, said Nadesan and Puleedevan walked towards Sri Lankan army lines with a white flag in a group of about a dozen men and women. He said the army started firing machineguns at them. Nadesan’s wife, a Sinhalese, yelled in Sinhala at the soldiers, ‘He is trying to surrender and you are shooting him.’ She was also shot down.”

The incident underscores the ruthlessness with which the Sri Lankan government and army slaughtered the LTTE leadership on the morning of May 18. Virtually all of the top LTTE leaders, including LTTE chief V. Prabhakaran, died in circumstances that have not been adequately explained. The Sri Lankan government claimed that Prabhakaran was killed in a gun battle trying to flee, but he may well have met the same fate as Nadesan and Puleedevan.

Certainly the army pursued the destruction of the last pocket of LTTE resistance with criminal indifference to the consequences of nearly a quarter of a million Tamil civilians trapped in the war zone. While Rajapakse’s government denies responsibility for any civilian deaths, the latest reports based on leaked UN estimates put the death toll at more than 20,000 since January.


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